EXCLUSIVE: Judge Jed Rakoff says plea-deal process is broken, offers solutionRakoff said judges should become more involved in the plea-deal process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants. He said too many innocent people go to prison because the process is broken.

BY Daniel BeekmanNEW YORK DAILY NEWSTuesday, May 27, 2014, 2:30 AM

Judge Jed Rakoff says plea bargaining can be unfair to innocent men like Rodney Roberts. Jefferson Siegel/New York Daily News Judge Jed Rakoff says plea bargaining can be unfair to innocent men like Rodney Roberts.

Too many innocent people go to prison because the American plea bargain process is broken, says a prominent New York judge with an innovative new solution.

Manhattan Federal Judge Jed Rakoff argues judges should become more involved in the process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants, he told the Daily News in a rare sit-down interview.

"The current process is totally different from what the founding fathers had in mind," because nearly all cases end in pleas, he said.

Nationwide, 97% of federal defendants plead guilty instead of taking their chances at trial. Thirty of 316 convicts exonerated by DNA evidence had entered a guilty plea, according to the Innocence Project.

The current system forces defendants to "choose between Satan and Lucifer," says Rodney Roberts, a Newark man exonerated this year on charges related to a sexual assault after 17 years in prison.

"I knew I didn't do it, but I didn't want to be in prison for the rest of my life," Roberts said. "They made me believe they were ready to enforce a life sentence.”

That's why Rakoff is proposing a mechanism that would designate junior judges to hear evidence and issue plea bargain recommendations early on in cases.

The junior judges, called magistrate judges in the federal system, would hear from prosecutors and defense lawyers separately before weighing in. Their recommendations wouldn't be binding.

Rakoff says the setup, which could begin as a pilot program, would bring plea bargaining out from behind closed doors and relieve pressure on defendants deciding whether to risk a longer sentence by heading to trial.

"There are some people who will say, 'I'm innocent and I'm going to fight to the end,' but they're the exception," Rakoff observed.

Rakoff would most like to see Congress trash mandatory minimums, but isn't holding his breath. He says an all-out elimination just isn't politically feasible.

"When people hear about crime going up they want higher penalties," Rakoff told The News.

"When they hear about crime going down they see the higher penalties as working, and they may be right because we're locking up a lot of guilty people along with some innocent people."

The judge has made no formal proposal and admits his plan isn't fully formed. He first floated the idea in a law school lecture at University of Southern California.

But David Patton, executive director at the Federal Defenders of New York, which provides lawyers for defendants who can't afford to hire their own, supports the basics of Rakoff's proposal.

"It makes a lot of sense," Patton said. "We're asking prosecutors to play both adversary and judge. It's an impossible task. Judge Rakoff is highly respected and I think people listen when he speaks."

A spokesman for Manhattan U.S. Attorney Preet Bharara declined to comment. But Bennett Capers, a Brooklyn Law School professor who spent 10 years as a federal prosecutor, hailed Rakoff's push for experimentation.

"I'm glad he's adding to the conversation," Capers said.

Rodney
Roberts, 46, supports Rakoff's idea. He says more 'checks and balances'
are needed to protect innocent people from coerced pleas.

Roberts, 46, is also on board with Rakoff's idea. He copped to kidnapping in 1996 after being charged with the sexual assault of a 17-year-old girl, but was recently exonerated by DNA evidence. He says more "checks and balances" are needed to protect innocent people from coerced pleas.

Robert's case was in New Jersey state court, but Rakoff and Patton argue many federal defendants face the same problem, with poor black and Hispanic defendants bearing the brunt of it.

"The charges that carry mandatory minimums tend to be the type that involve poor people: drug, firearms cases," Patton said.

"These are where you have the most coercive situations."

How many innocent or partly innocently people are locked up on false plea agreements? Rakoff says estimates have ranged from 1% to 8% of the prison population.

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